| People v Horton |
| 2013 NY Slip Op 03355 [106 AD3d 1192] |
| May 9, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JaniceK. Horton, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Broome County(Cawley, J.), rendered December 6, 2010, upon a verdict convicting defendant of thecrimes of robbery in the second degree and petit larceny.
In March 2009, defendant entered a department store in the City of Binghamton,Broome County, placed numerous items in a shopping cart and in her purse, and then leftthe store without paying for them. The store's loss prevention officer observed defendantstealing items and followed her into the parking lot where codefendant Robert W. Lamanhad parked his vehicle. At that point, the loss prevention officer asked for the return ofthe merchandise and that defendant come with him. A scuffle ensued, the result of whichwas that the shopping cart and purse were left in the parking lot and defendant fled inLaman's vehicle. Defendant was thereafter charged with robbery in the first degree,robbery in the second degree and petit larceny. Following a jury trial, defendant wasfound guilty of robbery in the second degree and petit larceny and was sentenced to anaggregate prison term of 3½ years followed by five years of postreleasesupervision. Defendant now appeals.
Defendant argues that her conviction of robbery in the second degree was notsupported by legally sufficient evidence and was against the weight of the evidence. Asis relevant here, "[a] person is guilty of robbery in the second degree when he [or she]forcibly steals property" [*2]and is "aided by anotherperson actually present" (Penal Law § 160.10 [1]). At trial, the People presentedevidence that defendant struggled with the loss prevention officer over the shopping cartfilled with stolen items and hit him with her purse, which was also filled with stolenitems, before fleeing the scene. Inasmuch as defendant was in possession of stolen itemswhile engaged in a struggle with the loss prevention officer, it may reasonably beinferred that her use of force was an attempt to retain the stolen items (see People v Bynum, 68 AD3d1348, 1349 [2009], lv denied 14 NY3d 798 [2010]; People v Stroud, 55 AD3d1047, 1048 [2008]; Peoplev Jones, 4 AD3d 622, 623-624 [2004], lv denied 2 NY3d 801 [2004]).The evidence adduced at trial further established that defendant and Laman planned tosteal several hundred dollars worth of items from the department store and that Lamandrove defendant to the store for that purpose. Laman waited outside the store in hisvehicle ready to drive defendant and the stolen items away, attempted to open the trunkfor defendant as she approached the vehicle with the stolen items, was present duringdefendant's scuffle with the loss prevention officer and drove defendant away from thescene. These facts are legally sufficient to establish that Laman provided assistance todefendant during the commission of the crime (see People v Hedgeman, 70NY2d 533, 543 [1987]; People v Washington, 283 AD2d 661, 661-662 [2001];People v Casmento, 155 AD2d 229, 229 [1989], lv denied 75 NY2d 768[1989]; compare People vColeman, 5 AD3d 956, 957-958 [2004], lv denied 3 NY3d 638 [2004]).
Accordingly, viewing the evidence in the light most favorable to the People, we findthat there was legally sufficient proof of each element of the crime of robbery in thesecond degree to sustain defendant's conviction (see People v Bleakley, 69 NY2d490, 495 [1987]; People v Bynum, 68 AD3d at 1349). Inasmuch as a differentverdict would not have been unreasonable, we have also considered the evidence in aneutral light and, according deference to the jury's credibility determinations, weighedthe probative strength of the conflicting evidence (see People v Bleakley, 69NY2d at 495; People vMathis, 60 AD3d 1144, 1146 [2009], lv denied 12 NY3d 927 [2009]).Having done so, we find that the verdict was not contrary to the weight of the evidenceand must be upheld.
Rose, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.